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February 12, 2006

More strong work by Judge Bataillon on Booker and the sentencing process

Keeping pace with Sentencing Hall of Famer Judge Lynn Adelman, who recently issued two notable Booker opinions (discussed here), fellow Hall of Famer Judge Joseph Bataillon has recently produced two more important opinions on post-Booker sentencing procedure and practice: US v. Fleck, No. 8:03-cr-00194 (D. Neb. Feb. 6, 2006), and US v. Beltran-Acre, No. 8:02-cr-00279(D. Neb. Feb. 2, 2006). Both Fleck and Beltran-Acre, which are available for download below, address a range of post-Booker sentencing issues and continue Judge Bataillon's strong and important work on due process and burdens of proof (previously discussed in posts linked below).

Here are just a few of the notable passages from the Fleck opinion:

[E]quating reasonableness with a Guidelines sentence in every case will make the Guidelines again mandatory, triggering the concerns raised in Booker....

Booker's advisory-Guidelines remedy is premised on its substantive acknowledgment that no Apprendi problem arises if a district court is bound only by the statutory maximum with no prospect of a reversal within that range. Thus, the operative factor in application of the remedy is the extent of a sentencing judge's discretion. Within the boundaries of its unfettered discretion, sentencing judges may rely on facts proved by a lower standard than proof beyond a reasonable doubt. Although sentencing courts have more discretion under the present advisory guidelines than under mandatory guidelines, they do not have the sort of "unfettered" discretion, i.e., generally not subject to review, that was given to them in the pre-Guidelines regime.... The constraint on the sentencing court's discretion is now "reasonableness," which remains an elusive concept under evolving law. Whether the constraint of "reasonableness review" cabins this court’s discretion to the point that "advisory" Guidelines effectively become "mandatory" Guidelines, triggering due process concerns, remains to be seen. Accordingly, a finding that sentencing courts may rely on facts proved by a preponderance of evidence to enhance a sentence after Booker does not lead to the conclusion that they must....

In light of the uncertainty of this area of evolving law and in view of the increased discretion afforded to this court under the advisory Guidelines, the court will exercise its discretion in determining the quantum of evidence necessary for enhancing facts. This court continues to believe that the safer course, in order to avoid potential constitutional issues, is to continue to require heightened proof with regard to any facts that increase a sentence to any significant degree. Moreover, in crafting sentences in consideration of the § 3553 factors, the court believes that whatever the constitutional limitations on the advisory sentencing scheme ... it is not "reasonable" to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt.